SCCE Government Compliance Conference

The Society for Corporate Compliaince and Ethics is holding this Government Compliance Conference in June.

I had the following emailings:

From: RDShatt@aol.com
To: roy.snell@corporatecompliance.org
Sent: 2/20/2013 2:18:12 P.M. Central Standard Time
Subj: Various- access to Compliance and Ethics Professional
Dear Mr. Snell,
I am a layperson with an interest in ethics and compliance.
I only recently became aware of the SCCE journal Compliance and Ethics Professional by finding this March/April 2012 issue on the Internet. I am very interested in seeing what articles are in current issues of the journal. Is there any free access to current issues of the journal? If so, how may I get that free access? If there is not free access available to me, how much would it cost for me to have access?
There are two articles I would be interested in writing and submitting to Compliance and Ethics Professional for consideration for publication by the journal. I will indicate these in a subsequent email or emails.
Thank you for your attention to this inquiry about access to Compliance and Ethics Professional.
Sincerely,
Rob Shattuck

From: Roy.Snell@corporatecompliance.org
To: RDShatt@aol.com
Sent: 2/21/2013 10:20:10 A.M. Central Standard Time
Subj: Re: Various- access to Compliance and Ethics Professional
Thanks for your interest. The magazine is available to members. Membership is $295. Ashlee would be able to answer any other questions related to this.
Roy

From: RDShatt@aol.com
To: roy.snell@corporatecompliance.org
Sent: 2/20/2013 2:41:33 P.M. Central Standard Time
Subj: First possible article-- actual corporate practices re: FSGO Sec. 8B2.1(b)(6)
Dear Mr. Snell,
The first possible article I would like to write and submit for publication in Compliance and Ethics Professional regards actual corporate practices that have been taken in response to the provision of FSGO Sec. 8B2.1(b)(6) that refers to a corporation's program "being enforced consistently throughout the organization through . . . (B) appropriate disciplinary measures for engaging in criminal conduct and for failing to take reasonable steps to prevent or detect criminal conduct".
As the below email (including the link that is set forth) indicates, this is an investigation I have initiated.
This possible article is dependent on what I find that has already been written on the subject.
Sincerely,
Rob Shattuck

From: RDShatt@aol.com
To: roy.snell@corporatecompliance.org
Sent: 2/20/2013 3:28:49 P.M. Central Standard Time
Subj: Second possible article-- how civil lawsuits interact with ethics and compliance
Dear Mr. Snell,
I have spent several years trying to persuade the ethics and compliance community that more attention should be paid to certain phenomena connected with private civil litigation. I have by and large been ignored about this, but I think I am getting to the point where silence on the part of the community will cease to be tenable, and some in the community will have to state a position about whether or not this subject has any importance relative to the ethics and compliance mission of the community.
If positions are forced to be taken by the ethics and compliance community, my second possible article for Compliance and Ethics Professional would be lay out the subject and report what positions are being taken in the community and the rationales for the positions.
For some background, see my article Does the civil liability system undermine business ethics? and these recent emails I have sent to members of the panel that authored the Ethics Resource Center's "The Federal Sentencing Guidelines For Organizations Twenty Years Later". (There is a lot more background I can provide, but the foregoing should be sufficient for Compliance and Ethics Professional to decide whether it has any interest in this second proposed article of mine.)
If my proposed articles need to be passed along to an editor of the journal for consideration, I hope you will kindly forward my emails to such editor or otherwise refer me to the editor.
Thank you.
Sincerely,
Rob Shattuck

From: Roy.Snell@corporatecompliance.org
To: RDShatt@aol.com
Sent: 2/21/2013 10:44:14 A.M. Central Standard Time
Subj: RE: Second possible article-- how civil lawsuits interact with ethics and compliance
Rob
I appreciate your interest however we have already had several articles on this subject and I am afraid we are going to have to pass.
Roy

From: RDShatt@aol.com
To: Roy.Snell@corporatecompliance.org
Sent: 2/22/2013 8:39:36 A.M. Central Standard Time
Subj: Re: Second possible article-- how civil lawsuits interact with ethics and com..
Thanks Roy. Needless to say, I am very much interested in reading the articles and learning who the authors are who wrote them. I won't pay the $295 today to gain access. I have some emails I have drafted to send to the June conference speakers (including yourself). Maybe that will help me learn more about who is writing and saying what.
Sincerely,
Rob

From: RDShatt@aol.com
To: roy.snell@corporatecompliance.org, paul.mcnulty@bakermckenzie.com, jemurphy@voicenet.com
Sent: 2/22/2013 8:49:50 A.M. Central Standard Time
Subj: "What Are the Essential Elements of an Effective Compliance Program?"
Dear Mr. Snell, Mr. McNulty and Mr. Murphy,
Your above titled presentation that is scheduled for June 10, 2013 at the SCCE Government Compliance Conference squarely raises for me the question of what actual procedures and practices does a corporation need to have in place under the provision of FSGO Sec. 8B2.1(b)(6) that refers to a corporation's program "being enforced consistently throughout the organization through . . . (B) appropriate disciplinary measures for engaging in criminal conduct and for failing to take reasonable steps to prevent or detect criminal conduct".
Are such actual procedures and practices under FSGO Sec. 8B2.1(b)(6) one of the "essential elements of an effective compliance program"? Can you refer me to any written materials that provide information about such practices and procedures, and cases of disciplinary measures that have been actually taken, by corporations.
Mr. Snell and Mr. McNulty recently received emails from me indicating my interest in the above questions. I am only a layperson and not a member of the SCCE and do not expect to attend the June conference. I nevertheless hope I am able to obtain some answers to my questions.
Thank you.
Sincerely,
Rob Shattuck

From: RDShatt@aol.com
To: patrick.gnazzo@gmail.com, corporate.ethics@lmco.com
Sent: 2/22/2013 9:02:23 A.M. Central Standard Time
Subj: "Getting Us All on the Same Page"
By email
Mr. Pat Gnazzo
Better Business Processes, LLC
Mr. Leo S. Mackay
Corporate Vice President and Elected Officer
Lockheed Martin
By US mail [mailed 2/26/13]
Mr. Denis McInerney
Chief, Fraud Section, Criminal Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Mr. Stephen L. Cohen,
Associate Director, Division of Enforcement
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
Dear Mr. Gnazzo, Mr. McInerney, Mr. Cohen and Mr. Mackay,
Your above titled "roundtable" of compliance officers and the enforcement community that is scheduled for June 10, 2013 at the SCCE Government Compliance Conference squarely raises for me a question that I have endeavored to raise with the panel that authored the Ethics Resource Center 2012 report The Federal Sentencing Guidelines for Organizations at Twenty Years
More particularly, as discussed in these Comments for FSGO panel that I have prepared and posted, I say. that there is a lack of interest of the FSGO Report proponents in holding accountable individual officers and employees who have played a culpable role in corporate wrongdoing, and that this lack of interest may cause the Report to lose credibility with the Justice Department and others on the governmental side.
The foregoing assertion, if it is true, would seem to have clearing bearing on your roundtable topic of "getting us all on the same page."
I am only a layperson and not a member of the SCCE and do not expect to attend the June conference. I nevertheless hope I able to obtain some reaction to this inquiry.
Thank you.
Sincerely,
Rob Shattuck

From: RDShatt@aol.com
To: mdoyle@aegis-compliance.com
Sent: 2/22/2013 9:29:12 A.M. Central Standard Time
Subj: "Compliance Programs: The Government’s Role"
[Ms. Doyle: I am unable to find an email address for Ms. Desio and Professional Ethics LLC. If you could forward this email to Ms. Desio, I would be most appreciative.]
Dear Ms. Doyle and Ms. Desio,
Your above titled presentation that is scheduled for June 10, 2013 at the SCCE Government Compliance Conference prompts me to make an observation that comes out in these Comments for FSGO panel that I have prepared and posted for the panel that authored the Ethics Resource Center 2012 report The Federal Sentencing Guidelines for Organizations at Twenty Years
What should come across in those comments is that the Report does a great deal of pressing for the government to do things to encourage corporation's to have ECEP's, but there is a two way street that the Report proponents do not seem to be interested in exploring. More particularly, I say there is a lack of interest of the FSGO Report proponents in holding accountable individual officers and employees who have played a culpable role in corporate wrongdoing, the government side may consider individual accountability more important, and that the lesser or non-existent interest of the Report proponents may cause the Report to lose credibility with the Justice Department and others on the governmental side.
Just an observation for your consideration.
Thank you.
Sincerely,
Rob Shattuck

From: RDShatt@aol.com
To: roy.snell@corporatecompliance.org
Sent: 2/22/2013 10:07:52 A.M. Central Standard Time
Subj: "Paper or Performing: Assessing a Compliance Program"
[Roy: I cannot find Mr. Guyton listed on the Meade, Roach website (where the brochure says he is a partner), and I am unable to find an email address for Mr. Jacobson. If you could forward this email to Mr. Guyton and/or Mr. Jacobson, I would be most appreciative. If not, that's ok too. Thanks. Rob Shattuck]
Billy Jacobson, Senior VP, Co-General Counsel,
Chief Compliance Officer, Weatherford International
Odell Guyton, Partner,
Meade, Roach & Annulis, LLP
Dear Mr. Jacobson and Mr. Guyton,
Your above titled presentation that is scheduled for June 10, 2013 at the SCCE Government Compliance Conference raises for me a question that I have endeavored to raise with the panel that authored the Ethics Resource Center 2012 report The Federal Sentencing Guidelines for Organizations at Twenty Years
FSGO Sec. 8B2.1(b)(6) refers to a corporation's program "being enforced consistently throughout the organization through . . . (B) appropriate disciplinary measures for engaging in criminal conduct and for failing to take reasonable steps to prevent or detect criminal conduct". More particularly, as discussed in these Comments for FSGO panel that I have prepared and posted, I say there seems to be a lack of interest of the FSGO Report proponents in corporations actually holding accountable individual officers and employees who have played a culpable role in corporate wrongdoing, and that the above provision of Sec. 8B2.1(b)(6) may be window dressing.
In this regard, I note that one of the bullet points for your presentation in the SCCE brochure is "Does the program ignore key elements, like incentives and auditing to detect actual violations?" I don't see a reference to "disciplinary measures" in the bullet points. What should be inferred from that?
I am only a layperson and not a member of the SCCE and do not expect to attend the June conference. I nevertheless hope I am able to obtain some reaction to what I say in this email.
Thank you.
Sincerely,
Rob Shattuck


From: jemurphy@voicenet.com
To: RDShatt@aol.com
Sent: 2/23/2013 11:42:35 A.M. Central Standard Time
Subj: Re: "What Are the Essential Elements of an Effective Compliance Program?"
Hi, Rob - Yes, discipline is part of the USSGs core elements. I have actually written an article in ethikos a few years ago that covered this. I've attached a draft copy of the article. Cheers, Joe

From: RDShatt@aol.com
To: jemurphy@voicenet.com
CC: paul.mcnulty@bakermckenzie.com, roy.snell@corporatecompliance.org, KDarcy@theecoa.org, pat@ethics.org
Sent: 2/24/2013 9:40:06 A.M. Central Standard Time
Subj: Re: "What Are the Essential Elements of an Effective Compliance Program?"
Thanks so much for replying to me, Joe, and especially thanks for sending me your article.
I note how your article says at the outset, "if one attends conferences on compliance and business ethics or scans the publications in these fields, this subject [discipline] appears to be distinctly unpopular."
Your article well articulates what a thicket the matter of discipline potentially presents, so much of a thicket I suspect that actual practices and procedures and actual discipline under FSGO Sec. 8B2.1(b)(6) are probably woefully sparse, if not non-existent.
When I saw in the 2012 FSGO Report of the Ethics Resource Center that the input solicited for the Report included presentation and discussion of the report outline with 500 ethics/compliance professionals at plenary conference session and also two online surveys to over 10,000 ethics and compliance professionals "to gather input on the specific language of FSGO and areas that are in need of clarification," I wrote Dr. Harned this email asking whether the ERC collected and evaluated information about the actual use of discipline under Sec. 8B2.1(b)(6). I did not receive any reply from Dr. Harned, so I don't know whether or not "discipline" under Sec. 8B2.1(b)(6) has much substance in the mind of the ERC.
The $25 billion settlement that was made in 2012 by Ally Financial, JPMorgan Chase, Wells Fargo, Citigroup, and Bank of America regarding the alleged mortgage-servicing and home-foreclosure abuses stemming from the so-called "robo-signing" practices got my interest related to Sec. 8B2.1(b)(6) and a HUD report about the pressures that were put on bank foreclosure workers (as reported in this Wall Street Journal article). I sent these emails to state attorneys general, the Department of Justice, the Conference of State Bank Supervisors, the American Association of Residential Mortgage Regulators, and the Mortgage Bankers Association but got no indication that disciplinary measures could be expected to be taken by the banks.
What do you think is the likelihood that disciplinary measures will be taken by Costco in the recent Costco/Tffany fake rings matter?
Joe, I think the ethics and compliance community is in need of soul searching about whether "discipline" under Sec. 8B2.1(b)(6) is basically empty because of a very tangled thicket presented by "discipline", whether that thicket can be cut through, and the implications and ramifications for the mission of the compliance and ethics community if the thicket cannot be cut through.
Again, I very much appreciate your sending me your article, and I will be looking for any other relevant articles that are in the literature.
I am copying the ERC and ECOA on this email for obvious reasons, as well as your co-presenters.
Sincerely,
Rob Shattuck

From: RDShatt@aol.com
To: roy.snell@corporatecompliance.org, paul.mcnulty@bakermckenzie.com, patrick.gnazzo@gmail.com, mdoyle@aegis-compliance.com, corporate.ethics@lmco.com
Sent: 5/2/2013 8:21:59 A.M. Central Daylight Time
Subj: SCCE Government Compliance Conference June 10, 2013
Via email to above addressees
Via U.S. Mail to below persons
Mr. Denis McInerney
Chief, Fraud Section, Criminal Division
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Mr. Stephen L. Cohen
Associate Director, Division of Enforcement
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549
Re: SCCE Government Compliance Conference June 10, 2013
Dear Government Compliance Conference speakers,
In February I emailed (or mailed) you concerning your upcoming conference, which communications are set out in my blog at http://robertshattuck.blogspot.com/2013/02/scce-government-compliance-conference.html. I very much appreciate the reply that Joe Murphy gave to me, but I did not hear from anyone else. I do not expect to attend the conference. If there is anything you will say in your presentations at the conference that address the subject of entity level liability versus individual officer and employee liability for purposes of deterringr corporate wrongdoing, I would very much like to publish the same in my blog. If you are willing, please send me a transcript of what I might publish.
Thank you.
Sincerely,
Rob Shattuck
Birmingham, AL



From: RDShatt@aol.com
To: roy.snell@corporatecompliance.org, paul.mcnulty@bakermckenzie.com, patrick.gnazzo@gmail.com, mdoyle@aegis-compliance.com, corporate.ethics@lmco.com, jemurphy@voicenet.com
CC: rryan@kslaw.com
Sent: 6/3/2013 3:30:58 A.M. Central Daylight Time
Subj: 5/21/13 WSJ op/ed piece "Why the SEC Needs 'No-Admit' Settlements"
Via email to above addressees
Via U.S. Mail to below persons

Mr. Denis McInerney

Chief, Fraud Section, Criminal Division

U.S. Department of Justice

950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Mr. Stephen L. Cohen

Associate Director, Division of Enforcement

Securities and Exchange Commission

100 F Street, NE
Washington, DC 20549

Re: SCCE Government Compliance Conference June 10, 2013

Dear Government Compliance Conference speakers,

In follow up to my prior emails to you, it seems appropriate to mention Russell G. Ryan's op/ed piece "Why the SEC Needs 'No-Admit' Settlements," which appeared in the May 21/22 Wall Street Journal (and which I have copied and pasted in my blog here).

The ongoing issue of whether or not society's formal legal machinery will or will not yield unambiguous determinations of what constitutes or does not constitute wrongdoing by corporations should, it seems to me, be troublesome for those in the business ethics and compliance domain. If the formal legal machinery does not make those determinations, what basis does there exist for agreement about what actions by officers and employees of the corporation are wrongful and are not to be engaged in?

Further, if the formal legal machinery does not yield determinations that something is wrongful, how does that affect, for example, the imposition by corporations of "discipline" on individual officers and employees under Sec. 8B2.1(b)(6) of the Federal Sentencing Guidelines for Organizations?

I do not expect to attend the June 10 conference, and I renew my solicitation that, if there is anything you will say in your presentations at the conference that address these matters I have been emailing you about (the subject of entity level liability versus individual officer and employee liability for purposes of deterring corporate wrongdoing, and whether the formal legal machinery makes unambiguous determinations about what constitutes or does not constitute corporate wrongdoing), I would very much like to publish the same in my blog. If you are willing, please send me a transcript of what I might publish.

Thank you.

Sincerely,

Rob Shattuck

Birmingham, AL

MEO conference faculty

From: RDShatt@aol.com
To: KDarcy@theecoa.org, bolson@theecoa.org, jkaplan@kaplanwalker.com, gwinter@illinois.edu, cbeinfo@bentley.edu, mhoffman@bentley.edu, twhite@ethicsandbusiness.org, TMazur@theecoa.org, harry.britt@elpaso.com, LTrevino@psu.edu, Jeff_Oak@bshsi.org, Dmdprudenc@AOL.com, johnsherman3@mac.com, carrie@ethicalleadershipgroup.com, dgebler@skoutgroup.com
Sent: 5/31/2011 4:33:26 A.M. Central Daylight Time

Subj: MEO: Entity versus individual liability under Obama

To Managing Ethics in Organizations faculty:

Is something significant going on in the Obama administration relative to entity versus individual liability for purposes of achieving deterrence?

Three Wall Street Journal articles in the past month have been suggestive to me that this is the case. See this, this, and this.

What do you think?

Thanks.

Rob Shattuck

APPE follow up

#1 Interchange with one professor:

From: weil@iit.edu

To: RDShatt@aol.com

Sent: 2/2/2009 7:05:37 A.M. Central Standard Time

Subj: RE: APPE Executive Committee: Does the Law Undermine Business Ethics?

You have written to me several times before. I do not understand your ungrammatical and incoherent sentence below that begins “I believe….” Sincerely, Vivian Weil

From: RDShatt
To: weil@iit.edu
Sent: 2/2/2009 8:08:03 A.M. Central Standard Time
Subj: Re: APPE Executive Committee: Does the Law Undermine Business Ethics?

Thank you for replying, Professor Weil.

I reflected about the grammar at the time I wrote the sentence but left it alone. Also I can appreciate that the referent of "obstacle" is ambiguous. I don't know whether it is grammatically correct, but the referent of "that" is "making changes in the civil liability system". One of the definitions I find for "ken" is "range of vision" and I trust the word "ken" is ok.

Let me revise the sentence as follow:
"I believe there is an obstacle to getting such attention because my contention contains a thrust towards making changes in the civil liability system and that is simply beyond the ken of professionals in the business ethics field."

Also, perhaps I expressed myself more clearly in this letter I wrote to ECOA members, of which you may have received a copy.

With the foregoing clarifications, may I repeat my solicitation made in my email concerning whether you, as an academic in the business ethics field, have any comment about what I said in my email [beyond, of course, what you have said below].

Thank you.

Sincerely,
Robert Shattuck

#2 Interchange with another professor:

Dear Mr. Shattuck:

Your article seems to have at least two severe methodological problems: 1) How do you measure the effect of civil liability on business ethics. Without an accurate measure, it is hard to know what effect of any civil liability has. 2) Even with a measure of improved or declining ethics (something more than newspaper stories), there is a problem about measuring cause and effect. Civil liability have grown because of falling ethics, rather than ethics falling because of civil liability rules. Usually, this sort of cause-effect problem can be solved only statistical analysis of data over an extended period--if at all.I'm also curious why you do not extend your argument to the criminal law as well. When civil liability fails, government often falls back on the criminal law--as in the recent failure of a peanut processor in Virginia to meet basic health standards.

Dear Professor______,

Thank you very much for your reply.

I have not progressed to the point of thinking that statistically measuring anything is a predicate to advocating and following a course of action. It would be nice if such measurement could be done, and I have no problem with attempts to do it, but sometimes it is necessary to make one's best evaluation of the choices and act without the benefit of statistical evidence and measurement. For example, President Obama may, without the benefit of statistical measurement, change US policy and practice on torture and interrogation techniques on the basis of a contention that prior practices do not produce a benefit that outweighs the effects of negative world and/or public opinion, of increasing risks of torture applied to our own forces, and of helping terrorist recruitment.

The central contention in my article is that ultimately it is individual human beings who conceive, design and implement unethical and wrongful corporate activities, and that the law can best foster ethical business conduct by focusing on and using available economic resources to ferret out and sanction, whether under the criminal law or the civil law, those individuals who are responsible for the corporate wrongdoing. Instead of that, the civil liability system undermines this focus and distracts and diverts resources away from such focus and thereby ultimately undermines business ethics, as more fully explicated in my article.

Again, thank you for replying.

Sincerely,
Robert Shattuck

[the professor back to me]

You may underestimating the possibilities of statistical measurement. For work on torture, see, for example, Jean Maria Arrigo, “A Utilitarian Argument against Torture,” Science and Engineering Ethics 10.3 (2004):1–30. The best evidence in that area comes from a surprising source, the records of the Inquisition. An administration that had checked what was known before acting might have avoided the disaster the Bush administration brought upon itself and the country.Perhaps if we looked for it, we could find surprising sources for business ethics also. Sometimes we have to act without adequate evidence, but we should avoid such risky conduct wherever possible, don't you think? Changing the civil liability system is a big change. Republican efforts to reduce corporate liability to malpractice suits may have had something to do with the current low status to which business has sunk--not at all what they intended. Claims about what undermines what presuppose theories of human motivation, itself a vexed subject. That's why I am not inclined to rush in the direction you suggest--and why my first impulse is to ask, "What do we think? What do we know? What can we prove?"--

Dear Professor ______,

Thank you very much again for replying again.

I would have to say that I am having a great deal of difficulty in getting ethics academics and professionals just to initiate the process by the first step of considering the matter and asking and trying to answer tentatively your initial "What do we think?" question.

I don't know whether you have any interest in or time for this topic, but, if you do, I would love to dialogue more with you about it.

Sincerely,
Robert Shattuck

Mr. Shattuck:

Here's my take on your argument.

First, I think you have an overly simplified (economist's) view of the business corportations. Let me quote

In short, all corporations are in the business of earning profits,
by going along the employee is just doing his job and what others
want him to do, the requested action is possibly in a gray area
anyway, his employer will not punish him for what he did, and any
other corporation that might learn of his willingness to go along
with what others wanted to him to do will not hold that against him
in getting another job.

Most corporations I have interviewed officers of seem to think of themselves as in the business of making something--auto parts, cell phones, turbines, and so on. They want to make enough money to stay in business but they are not interested in "maximizing profit for investors". Indeed, the few companies when I interviewed officers, all MBAs, who held the maximize return position, are out of business. The scandals I studied do not seem to involve employees just doing their job. They were often aware that what they were being asked to do might be illegal, something beyond what an employer can properly ask. All the examples of 'gray areas' that make the news are actually black. This, of course, is just "what I think". But I think you need to put it beside what you think. The facts are themselves a problem in this area.Second, I don't think you have your history right. When government regulation is strict, there's not much need for plaintiff's lawyers. As we enter a world of "deregulation", most things go wrong and there's more work for plaintiff's lawyers. We've just been through 30 years of deregulation, so people may have fallen back on the plaintiff's bar as their last resort in the attempt to get justice. Yet, there has been some attempt to measure the "litigation explosion". The numbers I've seen suggest that the explosion, real enough, is in suits between corporations, not in suits by individuals against corporations. So, here you may have your facts wrong.You also seem at the end of your paper to get your incentives wrong. Civil liability is not about criminal guilt. It is primarily a way to internalize externalities, that is, to make actors pay for the full cost of what they do (especially if they have deep pockets as a result of capturing the positive value of what they do). So, the plaintiff's bar is, by suing, helping to correct for market failure. It would be better if this were done in a less expensive way. But deregulation has cut off most of those other options (the equivalent of the workmen's compensation system). The innocent stockholder whose company has been socked with a big judgment now has an incentive to find better management or change the policies that cost so much money. That's the market regulating itself.Give you something to think about?--

Dear Professor _______,

Thank you once again.

You raise significant points that are deserving of factoring in. I am starved for interlocutors to critique my argumentation, as you have initiated here, and I have great desire for dialogue. I don't, however, want to impose on you and out you off.

To try to keep from put you off, I would like to mention only your point about "gray" or "black."

One of the complaints about plaintiffs lawyers is they prefer that there not be delineation of what is black or white as would allow a person to make decisions in reliance on clear delineations of what is black and what is white. Rather, the plaintiffs lawyers prefer to be in a position to contend for liability (and hence attorneys fees for themselves) on finding ex post facto some possibly plausible basis for contending that something should have been done or should not have been done, and thereby give rise to liability. Further, there is an in terrorem element that results in a settlement without there ever being a determination of what is or is not wrongful action. In my article, I give as an example the Vioxx litigation and say the following:
Next consider the hundreds of millions of dollars that plaintiffs’ attorneys will receive in the Merck litigation. Think how those sums might be alternatively expended in order to pay for programs and activities that would concretely advance protective and preventive objectives related to drugs such as Vioxx. These might include: greater FDA funding for post-drug approval monitoring and studies to detect adverse drug effects; design and implementation of better safeguards at the physician and patient level relative to decisions for a drug to be prescribed in a particular case; development of concrete protocols and guidelines for testing of drugs that drug companies could follow that would protect them against subsequent liability; development of concrete “conflict of interest” rules for researchers and physicians involved in testing or promoting a drug and punitive enforcement of the rules against researchers and physicians individually.Ultimately, there is a question of what exactly the wrongdoing of Merck was, articulated with sufficient specificity, that Merck and other drug companies can have advance notice of such specifics so they can avoid “wrongdoing” in the future. For all the billions of dollars that might wind up getting paid in the Vioxx litigation, no such concrete guidance may be forthcoming at all from the litigation, and, if that is so, all that happens is effectively a huge transfer from one set of parties without fault to other parties who have suffered a harm not caused by any wrongdoing of the first parties.
I have many more examples I would like to discuss, but I don't want to put you off.

Again, I very much appreciate your replying at all.

Sincerely,
Robert Shattuck

[the professor back to me]

The reason I said nothing about those two paragraphs of your is that I agree with them. But I think you have the causal mechanism wrong. The plaintiff's lawyers are basically Democrats. (At least, that's who they give most of their money to most years.) The people who cut back on FDA funding and loosened test standards were Republicans (who also attack plaintiff's lawyers). The lawyers' fees you lament are a byproduct of Republican deregulation, not the work of Democratic plaintiff's lawyers. So, I don't regard the plaintiff's lawyers are bad guys in this--any more than I would regard flies as the cause of garbage piling up. History is important in the analysis of social problems. The law journals actually contain a good deal of empirical research on this issue.I'm a philosopher; so, I only dabble in empirical stuff when I have. And, no doubt it's also because I'm a philosopher that I am not put off by an intelligent argument. But I do think you need to look at the empirical literature before you suggest cures for the problem you identify. Note: I agree that the problem exists. But, since I disagree about the cause, I may disagree about the cure.--

Dear Professor ____,

You continue to raise significant points.

In our system of government, the democratically elected legislative branch is supposed to enact the laws, the executive branch is supposed to execute the law, the regulatory function is something of a hybrid of the legislative and executive functions, and the judicial branch is supposed to be limited to applying the laws and regulations that have been enacted or promulgated to specific cases and interpreting such laws and regulations where there is ambiguity. The judicial branch is not supposed to make additional or different law or regulations from those enacted and promulgated by the legislative and executive branches.

An argument the plaintiffs' lawyers have is that the legislative branch and regulatory apparatus are corrupt and fail to represent properly their public constituency in the policy decisions they make, the laws they enact, the regulations they promulgate, and their enforcement of the same.I agree that the legislative branch is corrupt and the regulatory apparatus is tainted.I would only like the plaintiffs' lawyers to say, "We agree with your analysis and arguments about the civil liability system and the reforms that are needed, but you need to do something about the corrupt legislatures in the United States."To which I say to the plaintiffs' lawyers, "Let us be join arms and use some of your billions of dollars of revenues to proclaim to the public the corruption of its legislatures and campaign to defeat all incumbent legislators on general principles."

It continues to be a pleasure dialoguing with you.

Sincerely,
Robert Shattuck

[the professor back to me]

Wasn't this a line in Man from La Manche?--"'To which I say to the plaintiffs' lawyers, "Let us be join arms and use some of your billions of dollars of revenues to proclaim to the public the corruption of its legislatures and campaign to defeat all incumbent legislators on general principles."'

[me to the professor]

Why I feel so strongly and Why I feel so strongly about plaintiffs lawyers

[the professor to me]

Why do you think plaintiff's lawyers have "fooled" anyone? Their status is relatively low in polls (though above used car sellers). Stirring up litigation has been looked upon for many centuries. Are you sure you're not kicking someone who's already down (rather than, like Don Quixote, fighting an "unwinnable fight", as I first thought)? Anyway, step 1 has got to be to check your facts

Dear Professor _____,

Again, thank you for replying.

I think the main "fact" that you are referring to is the extent to which the current condition of the civil liability system is an organic societal reaction to compensate for a long period of deregulation, as opposed to being a result of plaintiffs lawyers aggressively molding the system to expand their litigation domain and to increase their riches derived from that system which they have done without due regard to societal interests (which require balancing) in the civil liability system and in ways detrimental to those societal interests and how they are balanced.

I am not sure how one goes about establishing the above "fact" one way or the other. My inclination would be to survey and evaluate, on an individual basis or in a more collective way, legal cases that transpire and ask how well societal interests are being served or are being ill served in those legal cases, and in the latter case why are they being ill served.

I think societal interests were ill served in the Vioxx litigation that I use as an example in my article. I think you indicated you agreed with me. If you are interested, go to http://www.overlawyered.com/ for an excellent chronicle and compendium of cases and developments in the civil liability system, start reviewing the same, and ask yourself how well societal interests are being served in balanced way in the cases you read about. I will be more than pleased to discuss with you what you find and think.

Sincerely,
Robert Shattuck

[the professor to me]

My point about the "fact" was that I've seen articles in law journals that did systematic studies on a large scale, for example, measuring increase in various classes of cases, comparing payouts over time using inflation-adjusted data, and so on. Your method tends to pick up the foam on the surface of the sea, missing the larger reality beneath.--

Dear Professor _____,

The leading authors of whom I am aware are Eisenberg and Miller. This link lists Eisenberg's articles:
http://library2.lawschool.cornell.edu/facbib/faculty.asp?facid=46&alphapage=0

There are a number of articles I would like to read. The below article on the list particularly jumps out, but all I can get free online is the abstract.

"Attorney Fees in Class Action Settlements: An Empirical Study" (with Geoffrey P. Miller), 1 Journal of Empirical Legal Studies 27-78 (2004).

Abstract: Study of two comprehensive class action case data sets covering 1993-2002 shows that the amount of client recovery is overwhelmingly the most important determinant of the attorneys' fee award. Even in cases in which the courts engage in the lodestar calculation (the product of reasonable hours and a reasonable hourly rate), the client's recovery generally explains the pattern of awards better than the lodestar. Thus, the time and expense of a lodestar calculation may be wasteful. We also find no robust evidence that either recoveries for plaintiffs or fees of their attorneys increased over time. The mean fee award in common fund cases is well below the widely-quoted one-third figure, constituting 21.9 percent of the recovery across all cases for a comprehensive data set of published cases. A scaling effect exists: fees constitute a lower percent of the client's recovery as the client's recovery increases. Fees are also correlated with risk: the presence of high risk is associated with a higher fee, while low risk cases generate below-average fees. Fees as a percent of class recovery were found to be higher in federal than state court. The presence of "soft" relief (such as injunctive relief or coupons) has no material effect on the fee, whether or not the soft relief was calculated in the quantified benefit for the class used as the basis for computing the attorney's fee. The study also addressed costs and expenses. Like fees, these displayed significant scale effects. The paper proposes a simple methodology by which courts can evaluate the reasonableness of fee requests.

By coincidence, I recently objected in a class action in which Professor Miller filed an affidavit. I wrote Professor Miller [this email]

I have not heard back from Professor Miller yet and will not be surprised if I don't hear back.

Sincerely,
Robert Shattuck

[the professor to me]

Remind me again of the point of this letter. You have an article below, published in a respectable legal journal, that seems to show that the total rewards plaintiff's lawyers win has not been rising (in the low inflationary period 1993-2002), that contingent fees seem to average 21.9% rather than the 1/3 I generally hear about, and that recent court attempts to push down fees as a way to reduce the attractiveness of lawsuits for a contingency--the only recourse of the poor and middle class--the lodestar calculation--doesn't seem to work. You do not contest these claims directly. Instead you wrote Miller asking to cite a book responding to your articles. I'd have thought you could do your own literature search. No wonder he didn't answer.By the way, I sometimes don't get answers even when I send a piece to another scholar asking for comment. So, I'd advise you now that you have got your list of articles to read, to go and read them. Focus on the arguments, not on the personalities.-

[me to professor]

No, the article is Miller's.

It was a matter of coincidence that Miller filed an affidavit in a class action lawsuit in which I was an objector in the lawsuit, and I wrote the email in question to Miller telling him that I was an objector and had strong anti-plaintiffs lawyers views and inquiring what book (or article) he considered a good statement of the case in support of the plaintiffs lawyers and that responded to well known books and arguments that state the case against plaintiffs' lawyers. I am not aware of any such pro-plaintiffs lawyers books that do. I have asked various persons to be cited to such books and have not been directed to any books. I have googled and thus far have not turned up anything.

One excellent book stating the case against plaintiffs lawyers is The Rule of Lawyers by Walter Olson. I found this highly critical review of Olson's book: http://www.manhattan-institute.org/html/_nylawjournal-lawyers_rule.htm. I disagree strongly with the review. Maybe I will write to the author of the review. I have done my own writings which I think address at least some of the reviewer's criticisms. You can find my writings here: http://robertshattuck.blogspot.com/search/label/M.%20My%20writings and, perhaps with some redundancy, here: http://robertshattuck.blogspot.com/2007/11/then-i-got-verbose-with-professors.html

I wonder which one of you and me is going to get worn out first.

Sincerely,
Robert Shattuck

[the professor to me]

Me.--

[me to the professor]

Thank you very much for your time, Professor ____. I will move on in search of my next interlocutor. Hope you have a great year. Sincerely, Robert Shattuck

[the professor to me]

You're welcome.--

Cintas Institute for Business Ethics at Xavier

Email sent to director of CIBEX

From: RDShatt
To: fiorelli@xavier.edu
Sent: 1/31/2009 1:13:11 P.M. Central Standard Time
Subj: CIBEX Advisory Board : Does the Law Undermine Business Ethics?

Dear Professor Fiorelli,

I have sent you several emails over the past two years to which I have not received any reply.

I would be interested in communicating with CIBEX Advisory Board members.

The gist of the communication I would like to send them is as follows:

Dear ________,

I contend that our country's civil liability system undermines business ethics. I have elaborated this contention at length in this article: Does the Law Undermine Business Ethics?

I am trying to get the attention of academics and other professionals in the ethics
field concerning my article.

I believe there is an obstacle that my contention contains a thrust towards making changes in the civil liability system and that is simply beyond the ken of
professionals in the business ethics field.

As a business ethics professional, do you have any comments?

Thank you very much.

Would you be in a position to provide me email addresses for any of the CIBEX Advisory Board members (who are listed below), or to forward this email to them directly?

Thank you.

Sincerely,
Robert Shattuck




Jeff CooperSVP & Chief Compliance OfficerITT Educational Services, Inc.
Denise Kuprionis, Esq.VP Corporate Secretary/Director of Legal Affairs The E.W. Scripss Company
Jocile Ehrlich President Better Business Bureau
John KuzmanJr. Chief Compliance Officer and Assistant General Counsel AK Steel
Robin Everhart Vice President Corporate Compliance Cintas Corporation
Tim Lutz Vice President Internal Audit and CCO Convergys Corporation
Paul FiorelliDirectorCintas Institute for Business Ethics at Xavier Xavier University
Michael Moser Vice President and CCO Western & Southern Financial Group
Michael Flowers Vice President & Corporate Counsel The Midland Company
Laura RandallCoordinatorCintas Institute for Business Ethics at Xavier Xavier University
Sandy Hughes Global Privacy, Compliance and Ethics Executive The Procter & Gamble Company
Vanessa Vargas-Land, Esq. VP, Chief Compliance Officer Chiquita Brands International, Inc.
Julie Janson Vice President, Corporate Secretary Chief Ethics and Compliance Officer Duke Energy Corpoartion
Tom Wiles Managing Director Corporate Compliance Duke Energy Corporation
Don Koenig Vice President Corporate Responsibility Catholic Healtcare Partners

Association of Professional Responsibility Lawyers

Form of email sent to APRL Board members and officers

From: RDShatt
To: _______________
Sent: 1/31/2009 _______P.M. Central Standard Time
Subj: To APRL Board and officers: Does the Law Undermine Business Ethics?


Dear Mr. _________,

I contend that our country's civil liability system undermines business ethics. I have elaborated this contention at length in this article: Does the Law Undermine Business Ethics?

Do you, as a lawyer who has taken a special interest in ethics, have any comments about my contention?

Thank you very much.

Sincerely,
Robert Shattuck

Association for Practical and Professional Ethics

Form of email sent to APPE Executive Committee

From: RDShatt
To:
Sent: 1/31/2009 ______ A.M. Central Standard Time
Subj: APPE Executive Committee: Does the Law Undermine Business Ethics?



Dear Professor ____________,

I contend that our country's civil liability system undermines business ethics. I have elaborated this contention at length in this article: Does the Law Undermine Business Ethics?

I am trying to get the attention of academics and other professionals in the ethics field concerning my article.

I believe there is an obstacle that my contention contains a thrust towards making changes in the civil liability system and that is simply beyond the ken of professionals in the business ethics field.

As an academic or other business ethics professional, do you have any comments?

Thank you very much.

Sincerely,
Robert Shattuck